4 Local authorities' legal duties towards children looked
after

General duties

When looking after a child the local authority is required to
safeguard and promote his or her welfare,
1 and to make use of such services as would be available for
children were they cared for by their parents.
2 The local authority must also take steps to promote
appropriate personal relations and direct contact between the child
and any person with parental responsibilities.
3 In discharging its responsibilities the local authority must
consult with, and have regard to the views of the child, his or her
parents, any person with parental rights and any other person whose
views may be relevant when making decisions,
4 and it must take account of the child's religious
persuasion, racial origin and cultural and linguistic background.
5

Although the child's welfare must generally be the paramount
consideration, the local authority may exercise their powers with
respect to a looked after child in a manner inconsistent with that
general duty, in order to protect members of the public from
serious harm.
6

Scottish ministers may prescribe the manner in which local
authorities discharge their responsibilities towards looked after
children and have done so in both secondary legislation and
guidance,
7 which contains detailed descriptions of good practice in
supporting looked after children and their families.
8

The local authority may terminate the placement where for any
reason it appears to the local authority that it is no longer in a
child's best interests to remain in a placement and shall make
arrangements to terminate the placement as soon as is practicable.
9

Children looked after by the local authority are included in the
indicative list of children whose needs local authorities should
consider in planning their services.
10 All these duties apply whether the child is looked after at
home, in residential or foster care or in a residential school.
11 For example the local authority may facilitate contact with
an absent parent for a looked after child living at home under
local authority supervision.

Children's views and wishes

Irrespective of the basis on which the child is looked after,
every child has the right to an opportunity to indicate whether he
or she wishes to express views, to express those views and to have
them taken into account in any decision-making processes affecting
him or her.
12 This right applies in both children's hearings and court
proceedings, and in local authority administrative decision-making
processes.
13 It is qualified only by constraints of practicality and the
need to take account of the child's age and maturity when having
regard to his or her views. Even if a child's views cannot
practicably be sought before the local authority applies for a
child protection order, it must seek and have regard to his or her
views when the child becomes looked after.

For this statutory right to have practical effect children and
young people will usually need skilled support from adult carers
and professionals. Guidance states that public services should be
planned and delivered on the basis of partnership with parents and
children and sets out the professional practice required to achieve
this. Consulting children and taking account of their views is a
dynamic and continuing process, not an event, and should permeate
all legal and local authority decision-making. Children, and their
parents and other relevant family members, should have sufficient
information at an early stage both verbally and in writing,
including advice about, and the opportunity to discuss the various
consequences of decisions they may take. They should be actively
involved in assessments, decision-making meetings, reviews and case
conferences and should be given help to express their views and to
prepare their own written reports or statements for meetings.
Professionals should listen to and take account of their views.
There should be clear and accessible means for children and parents
to challenge decisions with which they disagree and to make a
complaint, with access to independent advocacy. Administrative
arrangements, for example the location and timing of meetings,
should take account of both parents' and children's needs.
14

Provision for children's needs

The law requires local authorities to make appropriate
arrangements to meet the child's educational needs and to ensure
continuity of education.
15 When placed away from home the child has the right to be
brought up in accordance with his or her religious persuasion.
16 The local authority must ensure medical assessment of the
child's health status and need, and ensure that arrangements are in
place for the provision of health care, including medical and
dental care and treatment.
17 Any placement in a residential setting must be demonstrably
appropriate to the child's needs.
18

Right to contact with family

When a child is looked after away from home he or she is
entitled to contact with any family member who has parental
responsibility for him or her.
19 There is no statutory duty upon the local authority to
promote direct contact with people who do not have parental
responsibility for the child. In practice local authorities should
help the child sustain any significant relationships with relatives
and friends that are likely to promote his welfare or facilitate
the upbringing of the child by his family.
20 The local authority may provide travelling, subsistence and
other expenses to any parent, relative or other person connected
with a looked after child to enable contact if the person would not
be able to visit the child without undue hardship.
21

Sibling relationships

Sibling relationships are important in sustaining children's
personal identity and supporting stability in placements.
22 Brothers and sisters in care are too often placed separately
and many do not have contact with each other whilst in care.
Failure to protect sibling relationships for looked after children
may breach ECHR rights to respect for their family life.
23 Local authorities must place siblings together wherever
possible, and, if this is not appropriate or feasible, the children
should be placed in foster homes as near together as is appropriate
or practicable. Siblings placed in different residential
establishments should have regular contact.
24

The legal requirement to place siblings together is qualified by
the need to ensure that this is consistent with coexisting duties
to safeguard and promote the child's welfare and to ascertain the
child's views. Any decision to place siblings separately or deny
contact should be justified on welfare grounds.
25 Guidance stipulates that where it is not practicable or in
the best interests of siblings to be placed together frequent
contact should normally be arranged and reunification considered at
each statutory review.
26

Some sheriffs hearing children's cases are now scrutinising
local authorities' plans for placement of siblings, reasons for
decisions to place children separately and arrangements to ensure
continuing contact.
27